English v. Trump

In English v. Trump, the D.C. Circuit Court of Appeals considered who, by law, was the acting Director of the Consumer Financial Protection Bureau (CFPB) pending the nomination and Senate confirmation of a new Director: Leandra English, who was named Deputy Director of the Bureau by its prior Director, or Mick Mulvaney, who President Trump named as acting Director.

Case Summary

On November 24, 2017, Richard Cordray resigned as the CFPB’s director. Prior to resigning, and pursuant to his authority under the statute that established the CFPB, Cordray appointed the Bureau’s Chief of Staff, Leandra English (who has served in a number of leadership roles at the CFPB), as Deputy Director of the Bureau. That same day, President Donald Trump ordered Mick Mulvaney, currently head of the Office of Management and Budget, to serve as acting Director of the Bureau, purportedly pursuant to the Federal Vacancies Reform Act (FVRA). English sued, claiming that she is rightfully the acting Director and seeking to prevent Mulvaney’s appointment as acting Director. She also filed a motion for a Temporary Restraining Order (TRO), asking the court to preserve the status quo pending a ruling on the merits of her lawsuit.

CAC filed a friend-of-the-court brief on behalf of current and former members of Congress in support of English’s motion for a TRO. The court denied that motion, and English filed a motion for a preliminary injunction.

CAC filed a second friend-of-the-court brief on behalf of members of Congress in support of English’s motion for a preliminary injunction.

The district court denied English’s motion for a preliminary injunction. English appealed its decision to the U.S. Court of Appeals for the D.C. Circuit. CAC again filed a friend-of-the-court brief on behalf of former and current members of Congress in support of English. In our brief, we explained, as we did in our district court briefs, that to preserve the Bureau’s independence, the Dodd-Frank Wall Street Reform and Consumer Protection Act provides that in the event of a vacancy in the position of Director, the Bureau’s Deputy Director “shall . . . serve as acting Director.” As we further explained, this mandatory language displaces the default rules established by the FVRA under which the President can temporarily fill executive offices, and that interpretation of the text is supported by the structure and history of Dodd-Frank. Indeed, the text, structure, and history of Dodd-Frank all make clear that Congress intended to ensure that the Bureau would not be headed—potentially for many months—by an acting Director hand-picked by the President without the check of Senate confirmation, thus depriving the Bureau of the independence that was central to Congress’s plan in establishing it.

Before the Court of Appeals issued a ruling, English resigned and moved to voluntarily dismiss the case.

Case Timeline

November 27, 2017

CAC files amicus brief on behalf of current and former members of Congress in support of English’s motion for a TRO